WVC 18-7A-35B
§18-7A-35b. Temporary early retirement incentives program;
legislative declarations and findings; termination
date.
Under the prior enactment of this section, the Legislature
found and declared that a compelling state interest existed in
providing a temporary, early retirement incentives program for
encouraging the early, voluntary retirement of those public
employees who were current, active, contributing members of this
retirement system on the first day of April, one thousand nine
hundred eighty-eight, in the reduction of the number of the
employees and in reduction of governmental costs for the employees.
The Legislature further found that maintaining an actuarily sound
retirement fund is essential and that the reemployment in any
manner, including reemployment on a contract basis, by the state of
any person who retired under this section is contrary to the intent
of the early retirement program and severely threatens the fiscal
integrity of the retirement fund. The early retirement program
under the prior enactment of this section, offered employees three
retirement incentive options. Any person who retired under the
provisions of the prior enactment of this section are subject to
the restrictions contained in this section.

(a) For the purposes of this section: (1) "Contract" means
any personal service agreement, not involving the sale of
commodities, that cannot be performed within sixty days or for
which the total compensation exceeds seven thousand five hundred dollars in any twelve-month period. The term "contract" does not
include any agreement obtained by a retirant through a bidding
process and which is for the furnishing of any commodity to a
government agency; (2) "governmental entity" means the state of
West Virginia; a constitutional branch or office of the state
government, or any subdivision of state government; a county, city
or town in the state; a county board of education; a separate
corporation or instrumentality established pursuant to a state
statute; any other entity currently permitted to participate in any
state public retirement system or the public employees insurance
agency; or any officer or official of any entity listed in this
subsection who is acting in his or her official capacity; (3)
"substitute teacher" means a teacher, public school librarian,
registered professional nurse employed by the county board of
education or any other person employed for counselling or
instructional purposes in a public school in this state who is
temporarily fulfilling the duties of an existing person employed in
a specific position who is temporarily absent from that specific
position; and (4) "part-time elected or appointed office" means any
elected or appointed office that compensates its members in an
amount less than two thousand five hundred dollars or requires less
than sixty days of service in any twelve-month period.

(b) Any member who participated in the retirement incentive
program under the prior enactment of this section is not eligible
to accept further employment or accept, directly or indirectly, work on a contract basis from a governmental entity: Provided,
That the executive director may approve, upon written request for
good cause shown, an exception allowing a retirant to perform work
on a contract basis: Provided, however, That a person may retire
under this section and thereafter serve in an elective office:
Provided further, That he or she shall not receive the incentive
option he or she elected under the prior enactment of this section
during the term of service in that office for which the total
compensation exceeds seven thousand five hundred dollars, but shall
receive his or her annuity calculated on regular basis, as if
originally taken not under the prior enactment of this section but
on a regular basis. At the end of the term and cessation of
service in the office, the incentive option resumes. In respect of
an appointive office, as distinguished from an elective office, any
person retiring under this section and thereafter serving in the
appointive office for which the total compensation exceeds seven
thousand five hundred dollars shall not receive the incentive
option he or she elected under the prior enactment of this section
during the term of service in that office, but the incentive option
resumes during that period: And provided further, That at the end
of the term and cessation of service in the appointive office the
incentive option provided for under the prior enactment of this
section resumes: And provided further, That any person elected or
appointed to office by the state or any of its political
subdivisions who waives whatever salary, wage or per diem compensation he or she may be entitled to by virtue of service in
that office and who does not receive any income from service in
that office except the reimbursement of out-of-pocket costs and
expenses that are permitted by the statutes governing the office
shall continue to receive the incentive option he or she elected
under this section. The service may not be counted as contributed
or credited service for purposes of computing retirement benefits.

(c) If the elected or appointed office is a part-time elected
or appointed office, a person electing retirement under this
section may serve in the elective or appointive office with no loss
of the benefits provided under the prior enactment of this section.

(d) Prior to the initiation or renewal of any contract for
which the total compensation exceeds seven thousand five hundred
dollars and entered into pursuant to this section or the acceptance
of any elective or appointive office for which the total
compensation exceeds seven thousand five hundred dollars, a person
who has elected to retire under the early retirement provisions of
the prior enactment of this section shall complete a disclosure and
waiver statement executed under oath and acknowledged by a notary
public. The board shall propose rules for promulgation, pursuant
to article three, chapter twenty-nine-a of this code, regarding the
form and contents of the waiver and disclosure statement. The
disclosure and waiver statement shall be forwarded to the
appropriate state public retirement system administrator who shall
take action to ensure that the early retirement incentive option benefit is reduced in accordance with the provisions of this
section. The administrator shall then certify that action in
writing to the appropriate governmental entity.

(e) In any event, an eligible member who retired under the
prior enactment of this section may continue to receive his or her
incentive annuity and be employed as a substitute teacher, as
adjunct faculty, as a school service personnel substitute, or as a
part-time member of the faculty of southern West Virginia community
college or West Virginia northern community college: Provided,
That the board of directors determines that the part-time
employment is in accordance with policies to be adopted by the
board regarding adjunct faculty. For purposes of this section, a
"part-time member of the faculty" means an individual employed
solely to provide instruction for not more than twelve college
credits per semester.

(f) Any incentive retirants, under the prior enactment of this
section, may not receive an annuity and enter or reenter any
governmental retirement system established or authorized to be
established by the state, notwithstanding any provision of the code
to the contrary, unless required by constitutional provision.

(g) The additional annuity allowed for temporary early
retirement is intended to be paid from the retirement incentive
account created as a special account in the state treasury and from
the funds in the special account established with moneys required
to be applied or transferred by heads of spending units from the unused portion of salary and fringe benefits in their budgets
accruing in respect to the positions vacated and subsequently
canceled under this temporary early retirement program. Salary and
fringe benefit moneys actually saved in a particular fiscal year
constitute the fund source. No additional annuity shall be
disallowed even though initial receipts may not be sufficient, with
funds of the system to be applied for the purpose, as for the base
annuity.

(h) The executive secretary of the retirement system shall
file a quarterly report to the Legislature detailing the number of
retirees who have elected to accept early retirement incentive
options, the dollar cost to date by option selected, and the
projected annual cost through the year two thousand.

(i) Termination of temporary retirement incentives program. --
The right to retire under this section terminated on the thirtieth
day of June, one thousand nine hundred eighty-nine.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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